General Terms and Conditions of Sale
1. Applicability and Acceptance of Terms.
These General Terms and Conditions of Sale (the “Terms”) and such other documents concerning the purchase of Products from Shimadzu Scientific Instruments, Inc. (“SSI”) comprise the agreement (the “Agreement”) between you (the “Buyer”) and SSI. Unless otherwise agreed to in a valid written and mutually executed agreement between you and SSI, you agree to be bound by the Agreement for any purchase or transfer of Products from SSI (including any authorized distributor of SSI). If any conditions within the Agreement conflict with each other, the following precedence shall apply: (a) the Quote; (b) any written, mutually executed supplementary terms; (c) these Terms.
2. Effect of the Terms.
These Terms shall take effect upon acceptance of Buyer’s Order by SSI.
3.1 “Confidential Information” means any information that a party reasonably considers to be confidential, privileged or proprietary, whether or not patentable or copyrightable. Confidential information shall not include information which (a) is already known to the receiving party; (b) is or becomes part of the public domain through no breach of the Agreement by the receiving party; (c) is lawfully disclosed to the receiving party by a third party which is under no obligation of confidentiality; or (d) is independently developed by or for the receiving party without breach of the Agreement.
3.2 “Consumable” means any items that are designed to be used up in one year or less and for which the responsibility to replace is with the Buyer.
3.3 "Domestic” means any location in the contiguous United States, Alaska, Hawaii or any U.S. territory.
3.4 “International” means any location not in the contiguous United States, Alaska, Hawaii or any U.S. territory.
3.5 “Order” means the request for purchase or transfer of SSI Product(s) by the Buyer.
3.6 “Product” means any instrument, equipment, consumables, or other products transferred or sold by SSI.
3.7 “Specifications” mean the properties, weights, dimensions and other identifiable features used to describe a Product.
4. Product Terms.
4.1 Specifications. Specifications set forth in Product-related sales literature or the Quote are not guaranteed unless previously certified in writing.
4.2 Permits and Inspections. Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the Product(s).
5.1 Domestic. The prices provided by SSI are SSI's Domestic prices based upon manufacture of the quality and type of Product(s) ordered for shipment to and end use within the United States.
5.2 International. Products shipped for International end use shall be subject to SSI's international pricing, and unless otherwise specified, do not include warranty service or installation.
5.3 Delivery or Freight Fees. Buyer is responsible for standard delivery and handling charges unless otherwise mutually agreed between the parties.
5.4 Taxes. All taxes on Products, goods and/or services sold under the Agreement, including but not limited to VAT, federal, state and local excise, or sales or use taxes, shall be borne solely by Buyer. Buyer shall be obligated to pay all taxes, whether or not set forth on invoices. All taxes set forth on invoices shall be paid by Buyer in accordance with the terms of payment. If, notwithstanding the foregoing, any taxing authority attempts to assess taxes, Buyer shall release and indemnify, defend and hold harmless SSI from any and all losses, damages, claims or causes of action, including, but not limited to, tax, interest, or penalties and professional fees, related to such attempted assessment and shall make payment to SSI for any such costs paid by SSI and invoiced to Buyer in accordance with the terms of payment. Buyers with tax exempt status must provide valid, signed evidence of tax exemption.
5.5 Changes. SSI reserves the right to change its prices at any time without notice. Prices are subject to revision when interruption, engineering changes or changes in quantity or quality are caused or requested by Buyer. Errors in Product pricing or related terms by SSI which may, in SSI's sole discretion, be deemed clerical errors are subject to correction by SSI at any time.
6.1 Payment Terms. All payments due under the Agreement shall be net thirty (30) days from date of the invoice unless otherwise specifically stated on the invoice, and shall be made by check, credit card or wire transfer.
6.2 Credit Card Payment. Payment by credit card is subject to a convenience fee of 3% of the amount charged. Invoices are payable on the date due at any place of collection designated by SSI in funds bankable at par.
6.3 Late Payment Interest. Payments made beyond the terms in Section 6.1 will be subject to simple interest of 1.5% per month on the outstanding balance.
6.4 Rights to Effect Payment. SSI's obligation to accept orders and/or to make deliveries or provide service are subject to SSI's right to either: (i) require Buyer to make payment of all or any part of the purchase price in advance of delivery of Product(s), or (ii) make shipment of Product(s) to Buyer payable C.O.D. If Buyer (i) fails to make advance payment, (ii) any payment becomes delinquent, or (iii) refuses to accept C.O.D. terms for shipments, SSI shall have the right, at SSI’s sole discretion, to cancel the Agreement, refuse to make further deliveries, declare immediately due and payable all unpaid amounts for Products, or elect to exercise rights under Section 7 herein. Furthermore, Buyer may not move, sell, or otherwise transfer any Product until payment is made in full to SSI.
6.5 Transaction Independence. Each Product shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly.
6.6 Notification to SSI. Buyer must notify SSI within fifteen (15) days from the invoice date if Buyer has not received the Product(s).
6.7 SECURITY INTEREST. TO SECURE ANY AND ALL PAYMENT OBLIGATIONS OF BUYER TO SSI FOR THE PRODUCT(S), BUYER HEREBY GRANTS TO SSI A PURCHASE MONEY SECURITY INTEREST IN THE PRODUCT(S) AND ALL ADDITIONS OR IMPROVEMENTS THERETO AND ACKNOWLEDGES THAT SSI WILL FILE FINANCING STATEMENTS TO RECORD SUCH INTEREST AS PROVIDED BY THE UNIFORM COMMERCIAL CODE.
7.1 SSI Rights to Repossess. SSI may reclaim possession of any and all Products delivered to Buyer for which payment has not been paid in full according to the Payment Terms in section 6 herein (“Default”).
7.2 Notice. SSI will provide Buyer with five (5) business days prior notice of SSI’s intent to reclaim the Product(s) so that Buyer may cure the default.
7.3 Right of Entry. If Buyer does not cure the Default within 5 business days of notice from SSI, Buyer agrees and affirms that SSI may enter Buyer’s site at SSI’s convenience during normal business hours so that SSI may retake possession of the Product(s). By exercising its right to reclaim Product(s), SSI does not waive or exclude SSI of any other remedy to which SSI may be entitled.
7.4 Credit to Buyer. To the extent that SSI reclaims a Product, it shall credit Buyer's account for the value of the reclaimed Product, less the costs of repossession, repair, refurbishing and/or restocking as determined by SSI in its sole discretion. All costs of collection, including legal fees and costs of repossession, shall be added to Buyer's account.
8. Shipment and Delivery
8.1 Packaging. The cost of packaging for Domestic shipments is included in the quoted price unless otherwise provided or special packaging is specified or necessary. For International shipments, additional charges may be assessed to Buyer.
8.2 Shipment Terms. For Domestic shipments, all shipments, unless otherwise agreed in writing, shall be Freight on Board (“FOB") Columbia, MD. For International Shipments, including to ports and or places outside the United States, all shipments, unless otherwise agreed in writing, shall be FOB Columbia, MD. The cost of transportation and insurance (if requested by Buyer) shall be borne by Buyer.
8.3 Title and Risk of Loss. SSI's obligation to affect shipment of any Product purchased by Buyer shall be fully discharged, and beneficial ownership, legal title and all risk of loss or damage shall pass to Buyer when the Product is made available for shipment to a carrier at the designated FOB location.
8.4 Investigation and Notice of Damage. If shipped FOB Destination, upon arrival Buyer shall be entitled to conduct a reasonable investigation of the Product(s) purchased by it, but all claims for losses due to loss or damage to Product(s) while in transit shall be waived unless made immediately in writing by Buyer to SSI, but not more than thirty (30) days after arrival. If Buyer shall fail or refuse to accept delivery of any of the Product(s) for unverifiable claims for loss or damage to Product(s) occurring while in transit, all sums paid on deposit shall be retained by SSI as liquidated damages, provided, however, that SSI may recover in full its actual damage from Buyer in the event that actual damages exceed the amount retained as liquidated damages. All claims for damage or loss of insured shipments shall be immediately communicated, when possible, to SSI at Shimadzu Scientific Instruments, Inc. 7102 Riverwood Drive, Columbia, MD 21046-2502 Attn: Customer Service, Phone: (410) 381-1227. Buyer shall also immediately notify delivering carrier of loss or damage to the shipment and SSI will reasonably cooperate with Buyer in the adjustment of all claims. Buyer agrees to permit SSI or an SSI representative to inspect damaged Products at SSI’s convenience during normal business hours.
8.5 Shipping or Delivery Date. The scheduled shipping or delivery date is SSI's best estimate of the time the Product order will be shipped and SSI assumes no liability for loss, general damages, or special or consequential damages due to delays.
Upon any termination or cancellation of the Agreement by Buyer (as permitted by the terms of the Agreement), whether in whole or in part, Buyer agrees to promptly pay SSI twenty percent (20%) of the total amount of the Agreement.
10. Returned Products.
All returns must be pre-authorized by SSI. If authorized, SSI will provide Buyer a Return Goods Authorization ("RGA") number which must appear on the face of the package. Returned Products will be subject to a restocking charge of twenty percent (20 %) of the total amount of the Agreement.
11. Allocation of Products.
If SSI is unable for any reason to supply all of the Products specified in Buyer's order, SSI may allocate its supply among any or all buyers, including Buyer, in SSI’s sole discretion without liability to Buyer.
SSI shall defend and indemnify Buyer against patent infringing damages finally awarded in any legal action brought by a third party against Buyer directly arising from a Product directly infringing against any United States patent and/or intellectual property rights. This indemnity shall only apply (a) to claim or claims covering solely the Product itself; (b) if Buyer notifies SSI promptly in writing and gives SSI authority to defend; (c) if Buyer provides information and assistance for the defense of same; (d) if the claims did not arise based on Buyer’s failure to comply with the Agreement or to acquire any additional intellectual property rights related to the use of the Product; (e) if the claim does not relate to any use of any Product sold hereunder in any process or in conjunction with any other Product; (f) if the claim does not relate to any Product manufactured to Buyer's design or any Product having a design arising from SSI's compliance with Buyer's specifications; (g) if claims are related to Buyer’s use or resale of the Product or to modifications made by Buyer or at Buyer’s direction; or (h) if claims are related to products originating from third parties. In the event the Product identified in such suit is held to constitute Infringement and the use of said Product is enjoined, SSI shall, at its own option and at its own expense, either:
- procure for Buyer the right to continue using said Product,
- replace the same with a non-infringing Product,
- modify the Product so it becomes non-infringing, or
- remove the Product and refund its purchase price.
The foregoing sets forth the entire liability of SSI for patent infringement by a Product. If any suit or proceeding is brought against SSI based on claims that the Product supplied by SSI in compliance with Buyer's specifications directly infringe any fully issued United States patent, then the patent indemnity obligations herein stated with respect to SSI shall reciprocally apply with respect to Buyer.
13.1 Product Warranty. Subject to the exceptions and upon the conditions stated below, SSI warrants that Product(s) sold under the Agreement, excluding Consumables or Excluded Components or Accessories, shall be free from defects in workmanship and materials under normal and proper residual use and conditions, subject to the exceptions below, for a period of one (1) year after acceptance of the Product(s) (the “Warranty Period”) by the Buyer by SSI (the "Warranty"). If any such Product should prove to be defective within the Warranty Period, SSI's sole liability, and Buyer's sole and exclusive remedy, shall be, at SSI’s option, (1) to correct or repair the defect, or (2) to replace the defective Product or portions thereof with equivalent product or (3) to refund the purchase price.
13.2 Warranty Exceptions. The exceptions and conditions to this Warranty are as follows:
- a. Components or accessories manufactured by SSI which by their nature are not intended function for the extent of the Warranty Period (the “Excluded Components or Accessories”) are not included in this Warranty. SSI may elect, at its sole option, to provide reasonable service for a reasonable time for those Excluded Components or Accessories, and what constitutes reasonable time and reasonable service shall be determined solely by SSI. A complete list of Excluded Components and Accessories is on file with SSI.
- b. Consumables provided under the Agreement are not included in this Warranty but are instead subject to the following Consumables Warranty: SSI warrants that Consumables provided with or under the Agreement, except those specifically exempted, will be free from defects in materials and workmanship for ninety (90) days from the date of acceptance by Buyer (the “Consumables Warranty”). This Consumables Warranty is limited to the original purchaser of the Product and is not transferrable or assignable. During the Consumable Warranty period, SSI may, at its sole option, either replace a defective Product or return to purchaser the price of the item. This Consumables Warranty is valid only to the extent the Product and Consumables are operated under normal and proper residual use and conditions and have not been damaged as a result of accident, misuse, abuse, or service or modification of the Consumable or the Product.
- c. Buyer may not return any Product without prior approval from SSI. SSI will not accept returns without an RMA and prior authorization.
- d. Reference standards must be returned within ten (10) days from the shipment date; all other Products must be returned within thirty (30) days. SSI, in its sole discretion, has the option to refuse or accept late returns.
- e. Custom Shimadzu Consumables (i.e., non-stocked, non-catalog items) are not returnable or refundable unless the custom Consumables do not materially meet the agreed-upon Product specifications.
- f. SSI makes no warranty with respect to Products, components or accessories not manufactured by Shimadzu. In the event of defect in any such Product, component or accessory, SSI will give reasonable assistance to Buyer in obtaining from the respective manufacturer whatever adjustment is authorized by the manufacturer's own warranty.
- g. If the Product is a chemical, it is warranted only to conform to the quantity and content and for the period (but not in excess of one year) stated on the label at the time of delivery.
13.3 Return of Warrantied Products. Any Product claimed by Buyer to be defective is subject to Article 10 herein and must, if required by SSI, be returned directly to the factory, transportation charges prepaid, and will be returned to Buyer with transportation charges collect unless the Product is found to be defective, in which case SSI will pay all transportation charges.
13.4 Special Warranty. A Special Warranty may be provided with a Product, and, where applicable, such warranty shall be deemed incorporated herein by reference. In the event of a conflict between the terms and conditions specified herein and those specified in such Special Warranty, the terms and conditions specified herein shall control.
13.5 Voiding of Warranties. All warranties, whether express or implied, shall be immediately voided if the covered Product is misused in accordance with instructions or training and/or in accordance with industry standards or practices, or is repaired or modified by persons other than SSI authorized service personnel unless SSI gives prior written consent of such repair or modification.
13.6 SSI Warranty Obligations. SSI's obligations pursuant to all warranties, either express or implied, are conditioned upon payment in full by Buyer for the Product(s) covered by the warranties. In the event of Default or partial or full non-payment SSI shall be released from all obligations under all warranties, either express or implied.
13.7 LIMITATIONS. THIS WARRANTY SHALL BE IN LIEU OF ALL WARRANTIES OR WARRANTY OF ANY NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WTIHOUT LIMITATION WARRANTIES OF FITNESS AND MERCHANTABILITY, AND THAT SSI SHALL HAVE NO LIABILITY FOR SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCTIVITY, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OF PLANT, EQUIPMENT OR PRODUCTION. THIS LIMITATION OF LIABILITY FOR SUCH DAMAGES SHALL BE APPLICABLE EVEN IF SSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE MANUFACTURE, USE, SALE, HANDLING, REPAIR, MAINTENANCE OR REPLACEMENT OF ANY PRODUCT SOLD UNDER THE AGREEMENT.
13.8 Warranty Disclaimer. SSI specifically disclaims all warranties and conditions not stated in this Warranty; accordingly, representations and warranties made by any person, including dealers and representatives of SSI, which are inconsistent or in conflict with the terms of this warranty, shall not be binding upon SSI unless expressly agreed to in writing by an authorized officer of SSI.
14. Third Party Products.
SSI does not support nor make any warranties about Products manufactured or supplied by third parties, whether or not purchased from SSI.
15. Limitation of Liability.
To the maximum extent permitted by applicable law, SSI will not be liable under any legal theory for any indirect, special, incidental, punitive, multiple, exemplary or consequential damages that Buyer might incur under the Agreement, or that may arise from or in connection to a Product, even if SSI had notice of the possibility of such damages. SSI’s maximum aggregate liability arising out of or in connection with this Agreement, or any Product or service, is limited to the amount Buyer paid to SSI for the Product purchased that gave rise to the liability.
16. Contingencies; Force Majeure.
SSI, at its sole discretion, shall be entitled to cancel or rescind the Agreement, without liability for loss or damage resulting therefrom, if (1) any Product covered by the Agreement is purchased for end use outside the United States; (2) the Buyer breaches any of its representations or warranties found in the Agreement; or (3) the performance of SSI’s obligations under the Agreement is any way adversely affected by the occurrence of any contingency beyond the control of either SSI or SSI’s suppliers, including but not limited to: (a) war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot, act of a public enemy, or other act of civil disobedience; (b) failure or delay in transportation; (c) act of any government, government agency or subdivision of any government, or any judicial action affecting the terms of the Agreement; (d) labor dispute, shortage of labor, fuel, raw material or technical or yield failure where SSI has exercised ordinary care in the prevention thereof; and (e) accident, fire, explosion, flood, storm or other act of God.
17. No Warranty.
SSI makes no promise or representation that any Product or related services will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of SSI.
SSI shall not be responsible for any losses or damages sustained by Buyer or any other person as a result of improper installation or misapplication of a Product. Buyer shall release and indemnify, defend and hold harmless SSI, its officers, directors, employees, affiliates and agents against any and all losses, damages, claims, lawsuits, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection, directly or indirectly, with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the Agreement (including but not limited to the sale, transportation, installation, use, or repair of a Product by Buyer or of the information, designs, services or other work supplied to Buyer), whether caused by the concurrent and/or contributory negligence of SSI, or any of its agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the Agreement.
19. Confidential Information.
To effect obligations hereunder, the parties may exchange Confidential Information. Except as required by law, each party shall only use the other party’s Confidential Information for the purposes for which it was provided and shall only disclose the other party’s Confidential Information its employees with a need-to-know the Confidential Information. Neither party shall use (except for purposes connected with the performance of its obligations hereunder), divulge or communicate to any third party any Confidential Information of the other.
20. Disclosure of Personal Information.
In connection with the Transaction, SSI may disclose certain data constituting Personal Information as defined in the California Consumer Protection Act. To the extent that Personal Information is disclosed, the Customer acknowledges and understands that such disclosure is solely for the specific purposes of the Transaction and Customer agrees that SSI will not retain, use, or disclose any such Personal Information other than for the specific purposes of the Transaction.
21. Compliance with Laws
21.1 Compliance with Laws, Generally. Buyer agrees to comply fully with all applicable federal, state, county and local laws, rules and regulations concerning the purchase, sale and use of any Product, including but not limited to the Federal Food, Drug & Cosmetics Act; export control regulations (including Export Administration Regulations and the International Traffic in Arms Regulations of the United States), and applicable anticorruption laws (including the U.S. Foreign Corrupt Practices Act and the U.K. Anti-Bribery Act). To the extent a Product requires license for export, the Product is licensed by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion may be prohibited by law.
21.2 Research Use Only. Buyer understands and affirms that all Products, except designated CL versions of HPLC and LCMS, shall be for Research Use Only and not for use in the diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat or prevent disease or its sequelae ("Diagnostic Purposes"). Buyer warrants that it will only use the Product(s) accordingly and will obtain all necessary government approvals and permissions Buyer may need for use of the Product(s).
21.3 FDA Requirements. If any Product sold by SSI to Buyer is subject to regulation by the Food and Drug Administration as a device, then as to any such Product, sale and delivery by SSI is contingent upon successful completion and processing of a 510(k) notice. If such a 510(k) notice cannot be obtained by SSI, SSI shall have no obligation to deliver the Product.
21.4 Use in Nuclear Facility. No SSI Product is to be used in, for or with any nuclear facility unless specifically agreed to by SSI in prior writing.
22. General Provisions:
22.1 Entire Agreement. This Agreement is intended by the parties as a complete and exclusive statement of the terms of their agreement, and supersede all prior agreements, written or oral. No course of prior dealings between the parties and no usage of the trade may be used by Buyer to supplement or explain any term used herein.
22.2 Assignment. Buyer may not assign any rights or claims hereunder without the prior written consent of SSI. The rights and obligations under the Agreement will inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and permitted assigns.
22.3 Governing Law. Regardless of where entered into, the Agreement shall be governed, enforced and interpreted in accordance with the laws of the State of Maryland, without regard for its conflicts of laws provisions.
22.4 No Waiver. No action, failure of action or delay by either party will constitute a waiver of any of its rights or remedies under the Agreement.
22.5 Headings. The section headings are for reference only and will not be considered controlling as to the content and/or interpretation of any section.
22.6 Notices. Any notice or communication required or permitted hereunder must be provided to the other party in writing to the other party’s business address or an authorized corporate email.
22.7 Severability. The waiver of a breach of any provision does not constitute a waiver of a subsequent breach of the same or different provision. If any of the terms of the Agreement are subsequently or are now illegal, they will be severed without affecting the remaining term